The debate currently raging in Australia about amending or
repealing section 18C of its Racial Discrimination Act, 1975 is
rather interesting.

DURING the recent election, Prime Minister Tony Abbott and
Attorney-General George Brandis had pledged to repeal section
18C.

It all started after journalist Richard Bolt was found to have
contravened the RDA in two of his articles written in 2009 and
published in The
Herald Sun and
on its online site, titled “White fellas in the black” and
“White is the new black”.

As reported in the case of Eatock v Bolt, 2011, Eatock had
complained that Bolt’s two articles had conveyed offensive
messages about her and people like her (that is high profile and
fair-skinned Aboriginal people) in that they were not genuinely
Aboriginal and were pretending to be Aboriginal so they could
avail to the benefits meant for Aboriginal people.

Justice Bromberg ruled that the defences and exemptions allowed
under section 18D of the RDA, such as if the act was done
reasonably and in good faith for purposes of artistic work or
public interest or making a fair comment, had no application
because the articles contained factual errors.

Hence, this has now appeared to be the first task of the Abbott
government, that is to remove this racial vilification law. In
Brandis’ view, repealing section 18C would, in fact, strengthen
and restore freedom of speech in Australia.

“You cannot have a situation in a liberal democracy in which the
expression of an opinion is rendered unlawful because somebody
else ... finds it offensive or insulting,” said Brandis in The
Australian recently.

In other words, free speech is about allowing other people to
say or write bad and rude things about you which you do not
like.

That was exactly what Abbott said in August when he was the
Opposition Leader: “If free speech is to mean anything, it’s
others’ right to say what you don’t like, not just what you do.
It’s the freedom to write badly and rudely. It’s the freedom to
be obnoxious and objectionable.”

What is even more interesting is that the Abbott government had
last Tuesday appointed a strong critic of the Australian Human
Rights Commission, Tim Wilson, to be a new commissioner.

Formerly a policy director of the Institute of Public Affairs
which had earlier advocated the abolition of the Commission,
Wilson wrote at the same time in an op-ed piece in The
Australian, “The building blocks for a free society”, on
Dec 18 that Brandis had asked him, as Australia’s next human
rights commissioner, to focus on traditional liberal democratic
and common law rights, particularly article 19 of the
International Covenant on Civil and Political Rights (ICCPR).

He added: “As human rights commissioner, I will seek to reorient
the human rights debate towards liberal democratic values and
the philosophy of individual freedom.

“The most obvious freedom of speech issue this parliament will
face is the Coalition’s promise to repeal section 18C of the
Racial Discrimination Act.

“Section 18C has recently been controversial because of the
Andrew Bolt case but, as its supporters are first to say, it has
been used against many other Australians.

“I will be urging the full repeal of section 18C. It is an
unjustifiable limitation on free expression. The best way to
undermine offensive or hateful language is not to shut it down,
it is to challenge it, expose it for its flaws. The solution is
more speech.”

However, I wonder just how Wilson intends to go about doing it
when complaints to the Human Rights Commission about racial
vilification in his country have also increased over 50% last
year.

It is, therefore, a matter of concern whether this would now
become the new direction of the Commission when human rights are
certainly not just about freedom of speech but also freedom from
hate speech and discrimination.

In a nutshell, section 18C makes it unlawful for a person to do
an act which is reasonably likely in all the circumstances to
offend, insult, humiliate or intimidate another person because
of the other person’s race, colour or national or ethnic origin.

In this respect, I am rather surprised that Australian leaders
such as Nicholas Xenophon, who takes a keen interest in
Malaysian politics, is rather silent about this. This is
especially so because a repeal of section 18C may also increase
xenophobic attacks and hatred against foreigners who work and
study in Australia.

To my mind, if the intention of repealing section 18C is to
creat­e a free-for-all environment which allows a person to
indulge even in hate speech as in America because it is allowed
there by the First Amendment of the American Constitution, then
Australians must be prepared to face with more right-wing
anti-multiculturalism politicians like Pauline Hanson or
intolerant characters like Pastor Terry Jones.

In fact, there is no express provision, taking the form of a
bill of rights such as the First Amendment, in the Australian
Constitution.

At best, there is only an implied freedom of communication at
common law which cannot be curtailed by the executive and
legislature (see Lange v Australian Broadcasting Corporation,
1997).

Of course, it is well and good to give effect to the words of
Evelyn Beatrice Hall that “I may not agree with what you say,
but I will defend to the death your right to say it!”

But in my humble opinion, there is no country, not even America,
which practises absolute freedom of speech.

Justice Oliver Wendell Holmes said in Schenck v. United States
(1919) that there could still exist an exception, that is, if
the words used are used in such circumstances and are of such a
nature as to create a clear and present danger, for example,
falsely shouting fire in a theatre when there is no fire and
thus causing a panic.

In this respect, Wilson should not have conveniently left out
article 19(3) of the ICCPR in his afore-­mentioned article,
which says that the exercise of freedom of expression carries
with it special duties and responsibilities.

It may therefore be subject to certain restrictions as are
provided by law and are necessary for respect of the rights or
reputations of others and for the protection of national
security or of public order or of public health or morals.

Article 20(2) specifically prohi­bits any advocacy of national,
racial or religious hatred that constitutes incitement to
discrimination, hostility or violence.

Similarly, there are also restrictions placed on freedom of
expression as stated in Article 10 of the European Convention of
Human Rights.

In England, hate speech is an offence if it stirs up racial and
religious hatred as provided by the Public Order Act, 1986, as
amended by the Racial and Religious Hatred Act, 2006.

It follows that it cannot be gainsaid that in most cases, hate
speech is targeted at the minorities and the racially
marginalised. This is the group that actually requires the most
protection under racial vilification laws.

To my mind, freedom from hate speech and discrimination is as
much a human right as freedom of expression simply because it is
a humongous task for a normal human being to balance between the
person’s right to offend and another person’s duty to tolerate
the intolerant.

That said, this tolerance for intoleranc­e approach has no
application in Malaysia. Our right to free speech under Article
10 of our Federal Constitution is not absolute. It is still
subject to laws relating to, for example, national security,
public order, morality and laws providing against contempt of
court, defamation or incitement to any offence such as the
Sedition Act, 1948.

Having said that, we too should seriously examine the need for
havin­g a similar law such as section 18C in our statute books.

Perhaps the Sedition Act can be replaced by such a law which in
my view is all the more necessary in a multiracial,
multicultural, multi-religious and multilingual society like
ours. It may well be the elixir to national unity and harmony in
our country.